In Depth

A victim being asleep isn’t equivalent to a mental disability or deficiency for purposes of the sexual battery statute,
the Indiana Court of Appeals held Wednesday.

Ronald Ball was convicted of Class D felony sexual battery for kissing and licking Shaun Dozier’s face while she was
asleep. Once she awoke, she asked him to stop, and he left her apartment where he had been hanging out. Dozier uses a wheelchair
and takes pain medication that can affect her memory, but the state never argued this made her mentally disabled or deficient
for purposes of the sexual battery statute.

At issue in the case is whether Dozier’s being asleep at the time of the battery rendered her “so mentally disabled
or deficient that consent to the touching cannot be given” requiring Ball to be convicted of Class D felony sexual battery.

No case has considered this issue, so the Court of Appeals turned to the rape and criminal deviate conduct statutes, which
also include identical language – the force or threat of force and mental disability or deficiency prongs – that
are found in the sexual battery statute.

But those crimes also include a third prong not in the sexual battery statute: a person may be convicted under the rape or
criminal deviate conduct statutes if the victim is unaware the conduct is occurring. Under those statutes, being asleep only
has supported a conviction charged under the unawareness prong, not the mentally disabled or deficient prong, wrote Chief
Judge Margret Robb in Roland Ball v. State of Indiana, No. 06A01-1007-CR-426.

“The plain meaning of ‘mentally disabled or deficient,’ as well as the facts of the cases in which a victim
has been found to be mentally disabled or deficient, would exclude a temporary, natural state such as sleep from inclusion
in that phrase. Moreover, the legislature did not include in the sexual battery statute the ‘unawareness’ provision
included in other sex offense statutes, and we believe it would be disharmonious to construe ‘mentally disabled or deficient’
to include sleep for purposes of the sexual battery statute when the same phrase does not include sleep for purposes of the
other sexual offense statutes,” wrote the chief judge. “We therefore conclude that being asleep does not constitute
being mentally disabled or deficient.”

The state failed to prove the element of mental disability or deficiency beyond a reasonable doubt, so the judges reversed
Ball’s Class D felony sexual battery conviction. However, the evidence supports entering a judgment against him for
Class B misdemeanor battery.

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